Only a Supreme Court Challenge Can Overturn ACTA

By Wayne Rash |
Posted 2012-01-25

Secret Government Talks Create Treaty Stricter Than SOPA, PIPA

Imagine, if you will, SOPA with even more restrictions than the bill that was shelved by Congress last week. Now imagine that it's administered by a shadowy international organization that has no accountability under U.S. law, but can still order your ISP to monitor your personal communications. Finally imagine that this organization can order you disconnected from the Internet and could also order your ISP offline. Welcome to the ACTA treaty.

The Anti-Counterfeiting Trade Agreement, which President Barack Obama signed late last year, may do all of those things. Unfortunately, the agreement is so broad and so vague in its provisions that it's not clear exactly what the consequences, intended or unintended, may be. And because ACTA is not being sent to Congress for ratification, unlike other trade agreements such as NAFTA, there will be no hearings, no clarification and no way to know for sure until those consequences land on you without warning.

ACTA is, in effect, a treaty, negotiated in secret by the U.S. Trade Representative, Ron Kirk. While the USTR says that ACTA isn't really a treaty, but instead is an "executive agreement," not subject to ratification, it has all of the earmarks of a treaty. In any case, there's general agreement among Constitutional law experts that such executive agreements are unconstitutional.

Until recently, the actual text of ACTA was so secret that only a few lawyers outside of the White House and the USTR offices had actually seen it. And those people were required to sign non-disclosure agreements. Now that the text of the agreement is finally public (on the Japanese Minister of Foreign Affairs Website, not a site in the United States), the USTR is finally admitting to it. They're also trumpeting all of the letters the USTR has received saying it's a good idea on their own site. If those names on the right side of the screen look familiar, it's because they seem to be identical to the people backing SOPA and PIPA.

The portions of ACTA that exert control over the Internet are, for all practical purposes, SOPA disguised as an international agreement, and with even less recourse for U.S. citizens. Some members of the Internet community, now that they have access to the actual text of the agreement, have begun to object. In Poland, for example, hackers attacked government Websites last week in protest when the government of Poland said it would sign the agreement.

Only a Supreme Court Challenge Can Overturn ACTA

Likewise, now that Congress is aware that they've been cut out of the loop, despite the Constitutional requirement that all such treaties and agreements be ratified by Congress, is attempting to take action. U.S. Sen. Ron Wyden (D-Ore.), the same senator who killed PIPA by putting a public hold on it, has written President Obama demanding an explanation.

The White House is trying to avoid Congressional hearings for obvious reasons. The President doesn't want to upset his donors at the RIAA and MPAA by having this agreement suffer the same fate as PIPA and SOPA. When the disclosures finally come out, you'll see just how big the donations by the movie and recording industry to the President's re-election PAC are. In a word, huge.

But just because it's secret doesn't mean the agreement isn't the same as a treaty. Nor does it mean that doing an end-run around the constitutional requirement to get the approval of Congress is legal. Chances are, it's not. According to Professor Bennett Gershman, a constitutional law expert at Pace University Law School, this executive agreement, like most others, is unconstitutional.

Professor Gershman said that these agreements have been a subject of discussion in the legal community for years. "There's strong agreement that executive agreements are a fraudulent means of avoiding congressional requirements," Professor Gershman said in an interview with eWEEK.

The problem is that doing something about unconstitutional actions on the part of the U.S. Trade Representative is a difficult task. The action clearly has the support of President Obama, who signed the agreement in October. The only overt action that Congress can take is to challenge ACTA in the U.S. Supreme Court.

But of course there are other things that can be done. For example, when the USTR budget comes before Congress, the agency's budget may find that all funds for any action related to ACTA are cut off. This means that the USTR can take no action of any kind regarding ACTA without incurring severe criminal penalties for misuse of funds. Or Congress can include action in some bill that the President really wants, so that by signing it, the President also agrees to submit ACTA to Congress for ratification. Theoretically, the House of Representatives could even impeach the President for doing something clearly prohibited by the Constitution, although that's really unlikely.

What's really sad is that there's a lot that's in the Anti-Counterfeiting agreement that's important, such as creating a means for fighting the traffic in fake prescription drugs or counterfeit aircraft parts. Had this agreement been open for public discussion, perhaps the parts that really are necessary would be there, but the parts that impinge on free Internet commerce would not. Now it's an all or nothing agreement.

This story was updated to correct the spelling of U.S. Sen. Ron Wyden's (D-Ore.) name.